Carmel-Fevia and Fevia

[2008] FamCA 577

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA [2008] FamCA 577

FAMILY LAW – CHILDREN – Best Interests – Interim proceedings – Presumption of Equal Shared Parental Responsibility in Interim proceedings where no certainty as to allegations of Family Violence – Permission for children to travel on holiday

Family Law Act 1975 (Cth)

APPLICANT: Ms Carmel-Fevia

RESPONDENT: Mr Fevia

FILE NUMBER: MLC 4389 of 2008

DATE DELIVERED: 24 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Mr Thompson

SOLICITOR FOR THE RESPONDENT: Saxbys Lawyers

Orders

1. That the proceedings be adjourned to 26 August 2008 at 2.15pm before me as the first day of a less adversarial trial of all proceedings before the parties.

2. That the parties attend upon Dr L to ascertain his willingness to act as the family consultant for the purposes of a less adversarial trial in respect of children’s issues.

3. That the parties have liberty to apply for a mention before me before 26 August 2008 for the purposes of determining whether the family consultant is to be Dr L or some other professional.

4. That no party file any further application or affidavit without my leave before 26 August 2008.

5. That the case assessment conference fixed for 14 July 2008 be vacated.

6. That the wife make the child E born … December 2008 available to travel to Tahiti with the husband for a holiday between 26 June 2008 and 14 July 2008.

7. That the wife do all such action things and sign all documents as may be required to facilitate the issue of passports and visas (as applicable) in the name of the child E.

8. That the wife not denigrate the husband in the presence of the children or at all.

9. That all other interim parenting issues be referred to 26 August 2008 for consideration on the first day of the less adversarial trial including the question of the appointment of an Independent Children’s Lawyer.

10. That all financial issues as between the parties be referred to the first day of the less adversarial trial on 26 August 2008 for the making of procedural orders. 

11. That save as to the issue referred to in paragraph 9 hereof, the application of the husband seeking interim orders filed 2 June 2008 and the response of the wife filed 17 June 2008 seeking interim orders be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.

2. That the reasons for judgment this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Carmel-Fevia & Fevia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4389 of 2008

MS CARMEL-FEVIA

Applicant

And

MR FEVIA

Respondent

REASONS FOR JUDGMENT

1. In this interim hearing brought on very quickly, I have been asked to determine a variety of issues.  The husband seeks 17 orders, but of those, only three in my view are urgent.  The wife seeks 10 orders, but of those, in my view only two are urgent.

2. I propose to deal only with those urgent issues.  In essence, they relate to an overseas holiday, whether the wife should be supervised in her care of the children and an argument about denigration.  I propose to case manage all other matters in this file.

3. This case is essentially about two children, E and N.  E was born in December 2002.  She is therefore five and a half years of age.  N was born in January 2006.  She is therefore two and a half years of age.  Whilst this is a parenting case, it has some unusual features, having regard to the affluence of the parents but also the lifestyle that the parents and hence the children have led.  The husband is aged 57 years.  He is apparently semi‑retired from his business.  The wife is aged 49 years.  She is engaged in home duties.  The parties married in 2001 and separated in February 2008.  There has been considerable focus on what has happened since February.

4. In the husband's household prior to separation, his children from an earlier marriage also lived.  They were all part of the one family and had a significant relationship with the wife.  Those children were themselves the subject of former court proceedings.  The relationship came to an end in February but the wife remained in the former matrimonial home until being removed by the police after an intervention order was made on an ex parte basis on 26 March 2008.  I am told that when the wife left, N and E went with her. 

5. What gave rise to the intervention order was the behaviour of the wife.  The husband described it as pushing and shoving, swearing and denigrating him to his friends.  As the husband put it, the wife would not let him have peace or privacy. Contrary to the husband's assertions, the wife said the husband's application for the intervention order was without merit.  She said it was the husband who was periodically violent, aggressive and abusive to her.  She included that he had punched, pushed and hit her.

6. The facts that gave rise to this intervention order probably do not matter for the purposes of the orders I make today.  However, it is conceded by the wife that upon defending the intervention order hearing on 28 March 2008, she consented to an order for 12 months without admitting the underlying allegations.  The wife's explanation about this course of action was:

   I was reluctant to do this but the husband insisted on an Intervention Order and I did not wish to inflame him or the situation surrounding our separation or incur unnecessary costs associated with a further defended hearing in relation to the matter.  I therefore adopted a pragmatic approach in the circumstances...

7. Part of that pragmatic approach was to reach agreement that, at least in respect of parenting, the parties should consult Dr L.  Before turning to what occurred with Dr L, it is important to look at the respective parenting approaches up until the physical separation.  Mr Kirkham, for the husband, said he cared for the children with the assistance of paid carers.  In his affidavit, the husband said that he had always been actively involved in the care of all of his children and been available for them.

8. In contrast, Mr North, for the wife, maintained that the husband just could not go the last step to acknowledge the wife as the primary carer.  The wife, in her affidavit, denied that the husband had been actively involved with the care of the children, pointing to the fact that he complained about the difficulty of managing five children. 

9. I am not in a position to determine on an interim basis this issue.  The evidence of the parties needs to be tested, as does that of any corroborators that may come forward.  I dwell on this issue because it affects the nub of the argument of the wife to which I shall turn in a moment.  What is unusual here is that these two children have not been brought up in a home that may be often seen as traditional.  There are two reasons for that.  The first is that there are three other siblings, some may say half-siblings, whose ages are not substantially greater than E and N.  Secondly, there appears to have been a significant number of non-relative help with nannies and carers.

10. The impression I have from all of the evidence is that the two children have been exposed to a multitude of changes in their attachment figures, notwithstanding the protestations of both parents that each has been the primary attachment figure.

11. Subsequent to the March separation, the parties indeed saw Dr L, but even then, there is a disagreement about what the outcome was.  The husband said that the wife initially allowed him to see the children twice a week from 4 pm to 7.30 pm, refusing to allow them to stay with him and his three children overnight.  The wife conceded that position.  The visit to Dr L changed that. 

12. The husband's version was that the agreement had been reached.  He said, with Dr L’s assistance, they tentatively agreed on a shared care arrangement to be reviewed in early 2009 when the children were older.  Pursuant to that agreement, the children were to live with him on five nights per fortnight.  Those five nights were every alternate Friday and Saturday night, every alternate Wednesday night, and on Monday and Tuesday night in the intervening week.  The husband then said the following: 

    The shared care arrangement described above was to be implemented gradually, with our elder daughter, [E] staying with me on 5 nights per fortnight and our younger daughter, [N], building up from 4 nights to 5 nights per fortnight over a 2 month period, finishing on 27 June 2008.  From that date, she would also stay with me 5 nights per fortnight, as was to be the case with [E].

13. The husband said that the shared care arrangement also provided in the long term for the parties to share the holiday time with the children.  What the husband did not say was what the extent of the proposed future holiday arrangements would be. 

14. The wife's version of those discussions and agreement with Dr L was different.  She said that the graduated five nights per fortnight shared care arrangement was on a final rather than a tentative basis, at least for the foreseeable future.  She said that she had indicated she was open to review the arrangements when the children were older but not as early as 2009, save for graduated holiday arrangements.  She expressed the view that the appropriate time to review the arrangements was when N commenced school, which was when she turned five in 2011.  In respect of the outcome of the discussions with Dr L, the wife said the following:

    Pursuant to the agreement reached with Dr [L], [N] has only recently graduated to spending 2 consecutive overnights with the husband.  She has not spent extended holiday periods with the husband and this was also to be graduated in accordance with her age and state of development (as was the case with [E]).  My agreement, in principle, to a sharing of holiday time with the children was based on the holiday periods being broken into appropriate blocks of time given the children's respective ages.  They are both still young and are not used to spending extended periods away from me, particularly [N].

15. The obvious observation to make here is that the arrangements were agreed but what happens into the future was not.  What has therefore occurred is that the parties have put in place an arrangement that has subsisted for only some short number of weeks.  More importantly, although the arrangement is described as a splitting of the children into nine days with the wife and five days to the husband per fortnight, it is more important to look at how that time, at least with the husband, is structured.  It is not unbroken.  It is not consistent. 

16. In addition, the children spend time with carers whilst the husband goes about his daily activities.  That leads to the first issue in dispute.  The husband sought an order:

    That the Wife make the children available to travel in Tahiti with the Husband for a holiday between 26 June and 14 July 2008.

    and

    That the Wife do all such acts and things and sign all documents as may be required to facilitate the issue of passports and visas (as applicable) in the names of the children.

17. The wife sought that in respect of that issue:

    That [N’s] holiday time with the husband be broken into blocks not exceeding 2 consecutive overnights during 2008; 4 consecutive overnights during 2009; 7 consecutive overnights during 2010; 10 consecutive overnights during 2011;  and 14 consecutive overnights during 2012 (at which time she will be 6 years of age), unless otherwise agreed between the parties.

    and

    That [E’s] holiday time with the husband be broken into blocks not exceeding 10 consecutive nights during 2008 and 14 consecutive overnights during 2009 (at which time she will be 6 years of age), unless otherwise agreed between the parties.

18. I digress momentarily to point out that the wife sought orders that the husband have half of all school holidays, but that was subject to the limitations to which I have just referred and in addition, that the husband be in substantial attendance.  Accordingly, the time between the husband and the children as seen by each party was distinctly different. 

19. What gave rise to the husband's application and the wife's response is best summed up in the parties' own words.  The husband said the following:

    The reasons for my seeking to have this Application heard as a matter of urgency are twofold.  Firstly, I have booked a trip with my children to Tahiti between the dates 26 June to 14 July 2008.  My plans are to take [three older children], [E] and [N].  One of my adult daughters, [R], who is 30 years of age, will also be accompanying us.  We are scheduled to depart Melbourne on the afternoon of 26 June 2008 and return on the evening of 14 July 2008, when our children will be returned to [the mother].  Initially, [the mother] would not agree to our children going to Tahiti.  With the assistance of [Dr L], she has so far agreed to allow [E] to come on the holiday with us for a part of the trip, but not [N].

20. The husband then went on to set out the arrangements as to how the proposed trip would work, including the fact that he had chartered a private boat for the holiday in Tahiti and that the children were all very much looking forward to it.   He then said:

    I have not discussed the holiday to Tahiti with [N] however, she must have heard about it from [E] or from [the mother] and has asked me if she can come.  I am seeking an order to be able to take [N] on the holiday to Tahiti with us as well as [E] for the entire holiday.  As we leave on 26 June 2008, if time is not abridged for the hearing of my Application, a decision will not be made before our due date for departure from Australia.

21. As we now know, the registrar was sufficiently convinced to grant the abridgment. 

22. The wife's response was to largely admit the factual background.  Her view was simple:  E should not go for 19 days but 10, and N should not go at all because it would involve more than two nights.  Mr North said the court should not experiment.  He handed me a paper by psychologist, Vincent Papaleo, to support his contention, with the very strict qualification that Mr Papaleo talked in general terms about child development, and that may not necessarily apply to N anyway.  He said of N’s age group:

    The period between 15 and 30 months is particularly important.  It is during this period that children start to experiment with becoming more separate from their parents, at times running away from them for very brief periods and experimenting with the experience of becoming less connected.  This phrase, known as rapprochement, has a characteristic of a process of "emotional refuelling" during which time the child needs to check back frequently with the primary carer to refuel a sense of nurturing and to feel that this source is still there and then to be reassured that their basic needs will be met.  As the toddler develops a greater sense of awareness and independence, they also need reassurance and affirmation that their primary carers are able to share in their subjective experiences of the world by this checking behaviour which also provides the secure base to allow increased interest and increased capacity to explore the world around them.  The child begins to gradually develop the ability to feel safe and comfortable in the world away from their primary caretakers and at the same time, neurological development allows for greater mobility and language development.

23. He then said:

    For children of this age range, a developmentally sensitive contact plan focuses on consistency and predictability of contact, and contact plans should emphasise more frequent contact of less duration than less frequent contact of longer duration.  Overnight contact should be limited by the history of involvement in the child's life by a non-resident parent and by the child's temperament.  As a rule, overnight contact should be viewed more conservatively, as children in this stage of development cope less well with too many transitions and disruptions to primary attachments and cope better if they remain in predominantly one environment. 

    As little disruption to night-time routine is encouraged, as night-time is often an uncomfortable period for children.  They are tired, their normal defences are diminished and their ability to cope with stress is reduced.  It is generally better for younger children to sleep in the same place, as sleeping away from the primary home environment and away from the primary carer can be a frightening experience to an infant and a young child, and in the case of non-resident parents, the insistence of overnight contact may actually undermine the young child developing a strong relationship with that parent into the future.

    Individual differences in the child and their temperament will obviously affect how and when overnight contact is introduced.  When the care of the child is shared for even one night of contact, similarity of routine across households is essential to ease the transition and to encourage relatively stability.  Parents who can communicate about the child and the child's needs, who share and accept the understanding of the infant and toddler's specific routines and who can collaborate on such important routines as mealtime, sleep schedules and soothing techniques will contribute much more to a successful negotiation in this phase of a child's life.

24. Of this latter comment, it must be said that the parties do not communicate and do not seem to have similarity of routines.  Not only do the parents not collaborate, they have a dispute about what they agreed upon for the future needs of their children.  Even allowing for the qualification to Mr Papaleo's general hypothesis and in particular the point I earlier made about the unusual lifestyle these children have led, I could not countenance departing radically from Mr Papaleo's view about the length of time a child of N’s age and development should be aware from the parent to whom the greatest attachment is acknowledged by both parents, even if only as to time. 

25. E, however, is in a different category.  Mr North did not distinguish her from N.  Mr Papaleo said, of a five and a half year old child - and in this case I am using his six to 12 years of age category, notwithstanding six years of age is still some months away - he said:

    Here, a child shows a far greater capacity for separation and can tolerate much longer periods away from home without excessive fear and anxiety.  In the older range of this stage of development, children have developed a consolidated peer relationship and a greater investment in the importance of the world away from home and the fitting into a peer group that becomes increasingly important.  Children by this stage are clearly able to tolerate much more contact in time away from their home base.  Problems associated with relocation can be minimised because of the greater tolerance children have to spend more time away from home, albeit that at the younger range at this stage of development, they may find longer periods away from home, familiar supports, structures and the resident parent difficulty.  It is still advisable to adhere to the general principles of more frequent contact of shorter duration but more important is the positive attitude of the resident parent to the child's relationship with the non‑resident parent.

26. Here, to the wife's credit, she seems to be supporting the concept of E being away from home for the purposes of this holiday. Whilst I cautiously considered the principle of frequent contact of shorter duration, I feel that with the excitement, the closeness to the older siblings, the attachment to older carers and the presence of the husband in this case makes a longer absence from the wife achievable.  It is less of an experiment than it might be with N.  As I said, the wife herself supports that argument to some degree by suggesting the 10 days.  The distinction, however, from my point of view between 10 days and 19 days seems arbitrary. 

1. Before turning to what all of that means in practice, I wish to deal with the issue of what both parties have sought on a longer-term basis.  The husband seeks to enshrine the agreement, but on the basis of the following:  that the children live with the husband during school terms as follows:

   (a)every alternate weekend from after school on Friday until before school on the following Monday;

   (b)every alternate week from after school on Wednesday until before school on Friday and

   (c)on the intervening weeks from after school on Monday until before school on Wednesday. 

2. The wife seeks to limit that to the following: 

   The children live with the wife and spend time with the husband during school terms as follows: 

   (a)every alternate weekend from after school on Friday until 6 pm on Sunday;

   (b)every alternate week from after school at 4 pm on Wednesday until the commencement of school or 9.30 on Thursday; and

   (c)on the intervening weeks from after school or 4 pm on Monday until the commencement of school or 9.30 am on Wednesday.

3. On the material presented to me in the busy Duty List and confining counsel to limited arguments, I felt it inappropriate to determine that issue. The parties said they wanted orders and that at some foreseeable date, the case should be listed for that purpose. As this is a matter governed by Division 12A of the Part VII of the Family Law Act 1975 (Cth) (“the Act’), I propose to give the parties the first day of trial shortly, rather than have them endure another interim hearing. I propose that Dr L be asked to give evidence unless he views himself confined and restricted by confidentiality. If that is so, I will appoint a family consultant to the case.

4. The second pressing issue is that raised by the husband in the orders he sought:

   That the Wife not denigrate the Husband in the presence of the children or at all.

5. Senior counsel for the wife said there was no evidence to justify such an order.  However, this is what the husband said:

   [The mother] has denigrated me to the children, to my employees and to other people we know.  I believe this to be the case from what the children, family members, employees and friends have told me.  I do not want the children to be exposed to this.  I have often heard [the mother] use foul language when speaking to me and I believe that she uses abusive language when she talks about me to others.  Before the Intervention Orders were made against her, [the mother] called me a "fat fuck" and a "fucking bastard" and said my girlfriend is a prostitute and my personal trainer is a pimp.  Since the Intervention Orders were made, [the mother] has also told at least one person, namely our former housekeeper and mutual friend, [D] that my house has become a brothel and I am sleeping with strippers and nannies and that I have not given her any money, clothing or jewellery.  [D] told me that [the mother] said these things in front of [N]...

6. In response, the wife said:

   I say that I do not denigrate the husband to or in front of the children.

7. The wife goes on to complain, perhaps justifiably if it is true, about the husband's attitude and behaviour.  The wife does not specifically deny the husband's assertions, nor does she seek injunctive relief herself.  I think it is important for these children to be free of the unseemly brawl upon which their parents are about to embark, regardless of who is right or wrong.  The children should not be involved in that. 

8. Untested though the evidence may be, I am satisfied that there is enough to warrant an order.  To some extent, what tips the balance in favour of the husband is the fact that, albeit without admission, the wife consented to an intervention order.  The wife's attitude towards the husband was apparently the basis of that application.

9. I finally move to the third pressing issue. The husband sought an order in these terms:

   That during those times when the children are living with the Wife, the Wife have another adult in substantial attendance at her house.

10. The wife opposed that order.  To make that order would be a large invasion of the wife's privacy, even though it may be at the husband's financial expense.  The husband said the order was justified because of his concerns about the wife's health.  The evidence to support this was as follows:  the husband set out that the wife has been prescribed antidepressants which do not mix well with alcohol.  He said they made her behave in an erratic manner.  He then set out the drug that she has been taking.  He referred to the fact that she had a major car accident in February when she performed a U-turn without giving way.  Fortunately, there were only minor injuries. 

11. More importantly, the husband set out a series of events that have occurred subsequent to separation.  He described the wife as having been found unconscious on the floor four times that he was aware of as a consequence of substance abuse.  The first of those occasions occurred on 3 February.  He said that she started drinking a bottle of Scotch whisky about 5.30 pm and that her parents, brother, sister-in-law and their children arrived about an hour later to have dinner.  By the time these people had arrived, the wife had finished drinking most of the bottle and was lying unconscious on the couch and could not be woken.  The husband said that he prepared dinner that night with the assistance of the children's nanny and that the wife woke at about 2 am.

12. I started out by referring to the fact that these incidents occurred subsequent to separation.  It matters little in this case that that incident occurred at the time that separation was about to occur. 

13. The second incident occurred on 20 March 2008.  The husband said that he arrived home with the older children to find the wife intoxicated and asleep on the floor, with N asleep beside her.  He took pictures and ultimately those went missing. 

14. The third occasion occurred on 25 March 2008 when the wife was found unconscious on the floor at about 4.15 pm with N awake and distressed in her high chair nearby.  The wife telephoned him on his mobile telephone and subsequently his office phone at about 3 pm, at which time she was abusive and slurring her words.  He tried to call her back but was unsuccessful.  He was concerned that N was in her care.  When there was no answer, he left his office and went home, calling the wife's parents and an emergency assistance organisation on the way.  Upon arrival at home, he found that the organisation was present and waiting for him.  They had called an ambulance.  He let them into the house to find the wife sprawled on the television room floor.  N was crying in her high chair nearby and was distressed.  Significantly, the wife was oblivious to all of this.

15. The fourth occasion occurred on 13 April 2008, after the wife had moved out of the home. The children's nanny was attempting to return N and E to her at 6 o'clock as arranged. The wife was found unconscious and unable to be woken.  The nanny telephoned the husband to say that he could not raise the wife and he in turn asked the wife's parents to get them to assist.  According to the husband, the nanny later telephoned him to report that the wife's mother found the wife unconscious but that the children were safe.

16. Whilst the wife minimises the factual circumstances, she acknowledges that there has been a problem.  Significantly, she has sought help.  She provided a report from Dr S, whose specialty seems to be related to alcohol abuse problems.  Dr S wrote to the wife's solicitors on 9 June 2008, a report, the terms of which are as follows:

    …I have consulted with her on the following dates:  03.03.2008, 28/3/2008, 11/4/2008, 02/5/2008 and 06/06/2008.  The appointments have all been made by myself, in agreement with [the mother], and she has kept all her appointments and presented on time.

17. Dr S went on to opine:

    My impression was that [the mother] was suffering from alcohol abuse/dependence, depressive symptoms and emotional abuse. 

18. He then said that the wife continues to see a counsellor on a weekly basis and is taking significant medication which includes an antidepressant, an anti-craving medication and an anti-anxiety agent as well.  Significantly, Dr S said this:

    …There is no doubt that [the mother] has drunk excessively in the past.  In particular this appears to have been in response to stress.  However by her own report she is coping much more effectively now and is dealing with the distress of a divorce settlement in a much more positive manner.

19. As I said, the wife acknowledges the problem.  The parties saw Dr L and reached agreement without any suggestion of the wife being supervised.  The husband sought removal of the wife, albeit before these reported incidents, but still left the children with her.  The husband now seeks a shared care arrangement.

20. The door is never closed on the issue of protection from harm in relation to children but at this stage the evidence suggests that the wife has issues in hand.  It is trite to say that the spotlight is upon her.  Accordingly, I decline on the basis of that evidence to make the order sought by the husband.

21. The basis upon which a court makes a parenting order is governed by Part VII of the Act. Section 60B sets out the objects and principles under which this court is to operate. Fundamentally the object is that the court is to ensure that the best interests of children are met by ensuring that the children have the benefit have both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children. It goes on to say that it is in the best interests of the children that they are protected from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence and to ensure that children receive adequate and proper parenting to help them achieve their full potential.

22. The objects turn then to the parents, saying that it is in the best interests of the children by ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.  Section 60CA says that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as paramount.  Section 60CC(1) says that subject to one consideration, in determining what is in the best interests of a child, the court must consider the matters that are set out in subsections (2) and (3).  Subsections (2) and (3) of section 60CC set out primary considerations and additional considerations.

23. In respect of the primary considerations, the act says that the Court is to consider the benefit to the child in having a meaningful relationship with both of the parents and the need to protect the children from physical and psychological harm, as I have earlier described.  The additional considerations are a check list that must be considered in relation to the children but I shall turn to those that are relevant to these proceedings in a moment.

24. I am satisfied that both children have a meaningful relationship with both parents now.  In a case determining these limited issues, I do not need to stay on this issue any longer.  I am satisfied that these children will be protected from the harm I referred to as set out in section 60CC(2).  I also refer back to what I said a moment ago about the alcohol issues.

25. In respect of the additional considerations, I say that the first of those relates to the views of the children.  It is important that children's views be taken into account, providing I am satisfied that there is some relevance to the weight that should be given to those views.  In this case, these children are far too young to have a view about what should occur to them in the future, notwithstanding they may in fact articulate their desires, and in respect of the holiday, their delights.  Importantly, I am obliged to look a the nature of the relationship with each parent and other persons.

26. In this case, those other persons include their three siblings with whom they are close in age.  There are adult siblings as well, but they are not as significant, in my view, as the three other children.  I am satisfied that on what I am proposing in respect of E that the orders meet the child's best interests because she has a sound relationship with the husband and her older siblings, but importantly, will not be adversely affected in the long term by the absence from her mother.

27. The last consideration which is relevant to the matters referred to in section 60CC(3) relates to the likely effect of the changes to the child's circumstances, so to that extent, I am satisfied that being separated from her mother for 19 days is not likely to be harmful for E.  I am satisfied that the parents and particularly the husband have the capacity to provide for the needs of the children.  In respect of the holiday period, there is a dispute as to the quantum, but not as to the holiday itself.  That must mean that the wife has considerable confidence in the husband's capacity as a parent. 

28. I am satisfied that the husband and the wife both have a responsible attitude to parenting.  The wife has recognised her problem with alcohol which, if unabated, would have had a serious impact upon her capacity to care for the children.  The husband has recognised that his capacity to do the task alone is under challenge.  His evidence suggests that he is conscious of his need to spend more time with the children.  He at least espouses that.

29. I am very uncertain as to what to make of the family violence orders.  Each accuses the other of perpetrating family violence and that evidence is at the moment untested.  The wife, however, notwithstanding her protestations, has to face the fact that an order exists.  For the purposes of this application, save for what I shall turn to in a moment, it does not affect my determination. In my view, the orders about holidays are in the best interests of the children, notwithstanding that I will not permit N to go. 

30. Finally, I turn to section 61DA.  Although this issue was not addressed and responsibility for decisions about the future was not canvassed, it is still a matter that the court has to address.  Section 61DA(2) says that in making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.  That provision specifically refers to responsibility.  It has nothing to do with time.  It, however, starts the process by which a court is obliged to look at what considerations best suit the children in respect of the time they spend with each parent.

31. Subsection (2) of section 61DA says that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who, at the time, was a member of that parent's family or family violence.  In this case, the evidence I have already is sufficient in my view to rebut the presumption. 

32. Section 61DA(3), however, says that when the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.  This provision should only be used where it is difficult for a court on an interim hearing to make determinations and findings because of the absence of clear facts.  That is certainly the case here, except in respect of the matters that I have already made clear statements about.  I do not feel it appropriate in this circumstance to apply the presumptions because of the uncertainty about the evidence.

33. Accordingly, I say that I am satisfied that the orders that I have earlier pronounced are in the best interests of these two children.

I certify that the preceding Fifty Nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 July 2008